Citation Nr: 0605916
Decision Date: 03/02/06 Archive Date: 03/14/06
DOCKET NO. 03-22 654 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for a back disorder.
ATTORNEY FOR THE BOARD
Jessica J. Wills, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1976 to March
1978.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a January 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan, which denied the benefits sought on
appeal. The veteran appealed that decision to BVA, and the
case was referred to the Board for appellate review.
The Board observes that the veteran's appeal had also
originally included the issue of entitlement to service
connection for migraine headaches. However, during the
pendency of the appeal, a rating decision dated in July 2003
granted service connection for migraine syndrome with blurred
vision. Therefore, the issue no longer remains in appellate
status, and no further consideration is required.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. A back disorder was not manifested during service or
within one year thereafter and has not been shown to be
causally or etiologically related to the veteran's military
service.
CONCLUSION OF LAW
A back disorder was not incurred in active service.
38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R.
§§ 3.102, 3.303, 3.307, 3.309 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), enacted on
November 9, 2000, emphasized VA's obligation to notify
claimants what information or evidence is needed in order to
substantiate a claim, and it affirmed VA's duty to assist
claimants by making reasonable efforts to get the evidence
needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107
(West 2002); see Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002). In August 2001, VA issued regulations to
implement the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2005).
A VCAA notice, as required by 38 U.S.C. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120
(2004). In this case, the RO did provide the veteran with
notice of the VCAA in December 2002, prior to the initial
decision on the claim in July 2003. Therefore, the timing
requirement of the notice as set forth in Pelegrini has been
met and to decide the appeal would not be prejudicial to the
claimant.
Moreover, the requirements with respect to the content of the
VCAA notice were met in this case. VCAA notice consistent
with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must (1)
inform the claimant about the information and evidence not of
record that is necessary to substantiate the claim; (2)
inform the claimant about the information and evidence that
VA will seek to provide; (3) inform the claimant about the
information and evidence the claimant is expected to provide;
and (4) request or tell the claimant to provide any evidence
in the claimant's possession that pertains to the claim.
This "fourth element" of the notice requirement comes from
the language of 38 C.F.R. § 3.159(b)(1).
In this case, the RO informed the veteran in a VCAA letter
about the information and evidence that is necessary to
substantiate the claim for service connection in this case.
Specifically, the December 2002 letter stated that the
evidence must show that the veteran had an injury in military
service or a disease that began in, or was made worse during
military service, or that there was an event in service that
caused injury or disease; that he has a current physical or
mental disability; and, that there is a relationship between
his current disability and an injury, disease, or event in
military service. Additionally, the July 2003 Statement of
the Case (SOC) notified the veteran of the reasons for the
denial of his application and, in so doing, informed him of
the evidence that was needed to substantiate his claim for
service connection.
In addition, the RO notified the veteran in the December 2002
letter about the information and evidence that VA will seek
to provide. In particular, the letter indicated that
reasonable efforts would be made to help him obtain evidence
necessary to support his claim and that VA was requesting all
records held by Federal agencies, including service medical
records, military records, and VA medical records. The
veteran was also informed that a medical examination would be
provided or that a medical opinion would be obtained if it
was determined that such evidence was necessary to make a
decision on his claim.
The RO also informed the appellant about the information and
evidence he was expected to provide. Specifically, the
December 2002 letter notified the appellant that he must
provide enough information about his records so that they
could be requested from the agency or person that has them.
These letters also requested that he complete and return the
enclosed VA Form 21-4142, Authorization and Consent to
Release Information to the Department of Veterans Affairs, to
authorize the release of information from any private doctors
or hospitals from which he received treatment. In addition,
the December 2002 letter stated that it was still his
responsibility to support his claims with appropriate
evidence.
Although the VCAA notice letter that was provided to the
veteran did not specifically contain the "fourth element,"
the Board finds that the appellant was otherwise fully
notified of the need to give to VA any evidence pertaining to
his claims. In this regard, the RO has informed the
appellant in the rating decision and SOC of the reasons for
the denial of his claim and, in so doing, informed him of the
evidence that was needed to substantiate that claim.
All the VCAA requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). As noted above,
because each of the four content requirements of a VCAA
notice has been fully satisfied in this case, any error in
not providing a single notice to the appellant covering all
content requirements is harmless error.
In addition, the duty to assist the veteran has also been
satisfied in this case. All available service medical
records as well as VA and private medical records pertinent
to the years after service are in the claims file and were
reviewed by both the RO and the Board in connection with the
veteran's claim.
The Board does observe that the veteran has not been afforded
a VA examination in connection with his claim for service
connection for a back disorder. Under the VCAA, an
examination or medical opinion is considered necessary if the
information and evidence of record does not contain
sufficient competent medical evidence to decide the claim,
but (1) contains competent lay or medical evidence of a
current diagnosed disability or persistent or recurrent
symptoms of disability; (2) establishes that the veteran
suffered an event, injury, or disease in service; and (3)
indicates that the claimed disability or symptoms may be
associated with the established event, injury, or disease in
service or with another service-connected disability.
38 C.F.R. § 3.159(c)(4).
In this case, a VA examination is unnecessary to decide the
claim for service connection for a back disorder because such
an examination would not provide any more information than is
already associated with the claims file. As will be
explained below, the veteran has not been shown to have had a
back disorder in service. The record contains no probative
evidence that demonstrates otherwise. In fact, the evidence
of record instead shows the veteran to have had an
intercurrent back injury between his period of service and
his diagnosis of a current back disorder. Therefore, because
there is no event, injury, or disease in service to which a
current disorder could be related, the Board finds that a VA
examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i); cf.
Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing
Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345
F.3d 1334, 1355-57 (Fed.Cir. 2003) (noting that a medical
examination conducted in connection with claim development
could not aid in substantiating a claim when the record does
not already contain evidence of an inservice event, injury,
or disease).
VA has also assisted the veteran and his representative
throughout the course of this appeal by providing them with a
SOC, which informed them of the laws and regulations relevant
to the veteran's claim. For these reasons, the Board
concludes that VA has fulfilled the duty to assist the
veteran in this case.
Law and Analysis
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
Service connection for certain diseases, such as arthritis,
may be also be established on a presumptive basis by showing
that it manifested itself to a degree of 10 percent or more
within one year from the date of separation from service.
38 C.F.R. §§ 3.307(a)(3), 3.309(a).
In considering the evidence of record under the laws and
regulations as set forth above, the Board concludes that the
veteran is not entitled to service connection for a back
disorder. The veteran's service medical records indicate
that he sought treatment in February 1977 with complaints of
cramps on both sides of his back as well as in July 1977 with
complaints of a muscle spasm in his lower right thoracic
region in conjunction with sharp stomach pain. However, the
veteran was not diagnosed with a back disorder on either
occasion. In fact, he was diagnosed with a viral syndrome in
February 1977, and in July 1977, he was merely prescribed
Mylanta, which is a digestive medication. The Board also
notes that the remainder of the veteran's service medical
records are negative for any complaints, treatment, or
diagnosis of a back disorder. Thus, any symptomatology the
veteran may have experienced in service appears to have been
acute and transitory and to have resolved without residuals
prior to his separation. Moreover, the veteran did not seek
treatment until many years following his separation from
service. Therefore, the Board finds that a back disorder did
not manifest in service or within one year thereafter.
With regard to the 16 year evidentiary gap in this case
between active service and the earliest complaints of a back
disorder, the Board notes that this absence of evidence
constitutes negative evidence tending to disprove the claim
that the veteran had an injury or disease in service which
resulted in chronic disability or persistent symptoms
thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998),
aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed.
Cir. 2002) (noting that the definition of evidence
encompasses "negative evidence" which tends to disprove the
existence of an alleged fact); see also 38 C.F.R. § 3.102
(noting that reasonable doubt exists because of an
approximate balance of positive and "negative" evidence).
Thus, the lack of any objective evidence of continuing
complaints, symptoms, or findings for many years between the
period of active duty and the first complaints or symptoms of
a back disorder is itself evidence which tends to show that a
back disorder did not have its onset in service or for many
years thereafter.
A prolonged period without medical complaint can be
considered, along with other factors concerning a claimant's
health and medical treatment during and after military
service, as evidence of whether an injury or a disease was
incurred in service which resulted in any chronic or
persistent disability. See Maxson v. Gober, 230 F.3d 1330,
1333 (Fed. Cir. 2000). The Board must consider all the
evidence including the availability of medical records, the
nature and course of the disease or disability, the amount of
time that elapsed since military service, and any other
relevant facts in considering a claim for service connection.
Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir.
2000) (holding that the absence of medical records during
combat conditions does not establish absence of disability
and thus suggesting that the absence of medical evidence may
establish the absence of disability in other circumstances).
Thus, when appropriate, the Board may consider the absence of
evidence when engaging in a fact finding role. See Jordan v.
Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing
separately) (noting that the absence of evidence may be
considered as one factor in rebutting the aggravation part of
the section 1111 presumption of soundness).
In addition to the lack of evidence establishing that a back
disorder manifested during service or arthritis of the back
or spine within one year thereafter, the medical evidence
does not show the veteran to have a current back disorder
that is related to his military service. As discussed above,
the veteran did have not any complaints, treatment, or
diagnosis of a back disorder for many years following his
separation from service. Moreover, on numerous occasions,
the veteran reported injuring his back in 1994 while
unloading a truck at work. As such, it appears that the
veteran had an intercurrent injury that caused his current
back disorder. The only evidence contained in the claims
file showing otherwise is the veteran's assertions that he
currently has a back disorder related to service, which he
first raised when he filed his claim in August 2000.
Therefore, the Board finds that a preponderance of the
evidence is against the veteran's claim for service
connection for a back disorder.
Because the preponderance of the evidence is against the
veteran's claim, the benefit of the doubt provision does not
apply. Accordingly, the Board concludes that service
connection for a back disorder is not warranted. Although
the veteran's contends that he currently has a back disorder
that is related to service, the veteran is not a medical
professional, and therefore his beliefs and statements about
medical matters do not constitute competent evidence on
matters of medical etiology or diagnosis and absent a
professional medical opinion linking a current disorder to
service, service connection cannot be granted. See Espiritu
v. Derwinski, 2 Vet. App. 492 (1992).
ORDER
Service connection for a back disorder is denied.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs